| The problem of contract effectiveness in violation of administrative compulsory regulation is the marginal problem in the determination of contract effectiveness.The contract law and contract law judicial interpretation,for the influence of the mandatory provisions of contract effectiveness,adopted the "dichotomy" path,which can only be as effective mandatory rules are considered the basis of a contract shall be invalid.This kind of practice,human will administrative mandatory provisions and the relationship between the contract effectiveness,leading to the influence of the mandatory provisions of administrative contract effectiveness due importance is not,however,the problems in the judicial practice and problems but have not reduce or disappear.Therefore,it is necessary to further consider and analyze the effectiveness of the contract in violation of the mandatory provisions of management.Clarify the administrative mandatory provisions to the contract effectiveness of multi-level,the influence of the contract in the judicial practice of the balance between freedom and order of society as a whole,has very important theory meaning and practice meaning.In addition to the introduction and conclusion,this paper is divided into four parts.The first part is a violation of the practice of "administrative compulsory regulation".In violation of mandatory provisions of administrative contract effectiveness is based on the typical case that there are significant differences,the two sentence in violation of mandatory provisions of administrative contract effectiveness that thinking difference which were as follows: the first-instance judgment along the "not in violation of mandatory provisions-effective-effective enforcement" the path to the judge,verdict is based on the fact that the contract in violation of the provisions of administrative compulsory stripping the judicial mandatory execution of the contract.Through comparative analysis,it is necessary to make a second evaluation of the legal consequences of the validity of the contract,even though it is concluded that the contract is valid.The second part is the legislative evolution and function orientation of compulsory regulation.Based on "administrative mandatory regulation" to evaluate the secondary contract effectiveness of the legal consequences of reasonableness and necessity,civil after the contract is considered valid but unable to get the judicial compulsory execution,what is the meaning of the contract effective problem is put forward,which leads to the mandatory provisions of legislation evolution and function positioning of the comb.First of all,based on the trajectory of development of civil law,mandatory provisions in the civil law system status change from weak to strong,and generalization from mandatory provisions to the administrative compulsory regulations and mandatory provisions of sexual differentiation potency.Secondly,combining with our country legislation development status on the contract effectiveness,combed the mandatory provisions of contract law in the legislative development process,and it is concluded that the essence of the function of "mandatory" is national public power for private law autonomy means of intervention,its purpose is to pursue a broader level of order.It affirmed the "mandatory provisions" dichotomy,which greatly restricted the invalid situation of the contract and provided a broader living space for the autonomy of private law.Also pointed out that "dichotomy" cut the contract effectiveness and implicit relationship between "administrative mandatory rules",to some extent,stop people through "administrative mandatory regulation" to know the possibility of contract effectivenessThe third part,the unified law order and the violation of the administrative mandatory provisions of the contract effectiveness.Administrative mandatory provisions behind also carries a specific interests and legal value,if the effectiveness of the contract in violation of the regulations of administrative enforcement and don't have any effect,might make the mandatory provisions of administrative law in the loss of the basic value within the legal order,useless,so that "violate the provisions of the administrative compulsory behavior" can be arbitrary power to private law,impact the management order of the public law level,and then hit the unity of the legal order.First of all,on the basis of the cognition of the unified law order,the determination criterion of the legal consequences of the violation of the management mandatory provisions on the validity of the contract shall be incorporated into the overall consideration of the establishment of the unified law order.Second,from a strict law monism ","illegal relativity of reflection" two aspects analyzes the unified law order and illegal conflict,relativity and order under the concept of the unified method,the maintenance of freedom of contract at the same time,justice also should pay attention to respect the country's economic order and economic regulation,the validity of the contract with the illegality of separation control within reasonable limits,cannot because of the contract in violation of the provisions of the administrative compulsory,and arbitrary deemed as effective,and general gives the compulsory execution,unified legal order.The fourth part,the violation of the management mandatory provisions of the validity of the contract.Based on the former three parts,this part puts forward the following opinions: the concept of unified legal order,in certain circumstances,administrative mandatory provisions should be deemed as effective factor.And behind from administrative mandatory regulations of the public interest to distinguish,carried by the unified legal order for accuracy,according to the public interest,the distances from the unified legal order to build a "near-of-" different types of public interest "pattern of difference sequence",and according to the mandatory provisions behind different types of public interest,carried by the mandatory provisions into further type will order mandatory regulations,mandatory provisions in the order and order mandatory provisions.On the basis of further put forward the close order mandatory provisions mandatory provisions,belongs to the effective administrative mandatory provisions was divided into administrative mandatory provisions in order and well order administrative mandatory provisions.This paper gives the tool-proportion principle to identify different administrative compulsory regulations.Eventually conclude that under the concept of unified legal order,administrative mandatory provisions stands behind the legal interests of multi-layered,some due to purely administrative matters,others are closely connected with the administrative order,according to the regulations of administrative compulsory line behind power degree of interests,in violation of mandatory provisions of administrative contract effectiveness should be further distinguish in justice: the first category is the most common category,namely,in violation of the provisions of administrative compulsory is order contract is valid,and can through the judicial referee for the compulsory execution;The law and interests behind the second kind of administrative compulsory regulation are the public interests of the central order,and the contract is valid,but it cannot obtain the compulsory execution force,and it is reduced to the debt of nature. |
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